Is sexting between minors or teems in Colorado illegal?
Full Question:
Answer:
In the opinion of People ex rel. T.B., 2016COA151, 14CA1142, Court of Appeals of Colorado, Sixth Division, October 20, 2016, the Court stated in reference to sexting the following:
¶ 47 The juvenile also asserts a broader argument that the sexual exploitation of a child statute does not cover "teen sexting." This term refers to teenagers sending sexually explicit messages or images to one another by cell phone.
¶ 48 First, the juvenile uses the legislative declaration to argue the statute targets only adult conduct. He contends there is a meaningful difference between adult pedophiles possessing child pornography and teenagers with nude photos of their boyfriends or girlfriends. We disagree. The language of the statute covers proscribed behavior committed by teenagers involving images of other teenagers.
¶ 49 Under the statute's plain meaning, the perpetrator's age is irrelevant. Notwithstanding the dissent's valid contention that juveniles do not possess the emotional capabilities of adults, the statute does not exempt teenagers. Indeed, the Colorado criminal code contains no general exception for the criminal responsibility of teenagers. True, the Colorado juvenile code has special procedural and sentencing rules for teenagers accused of criminal misconduct. See §§ 19-2-104, -512, -517, -907, -908, C.R.S. 2016. But, even so, it does not immunize teenagers from responsibility, or alter the elements of crimes when committed by teenagers. In short, when it comes to responsibility, teenagers are not a protected class. Absent specific language in the statute, if a teenager's behavior satisfies the elements, a teenager is just as responsible as an adult.
¶ 50 In addition to covering perpetrators who are teenagers, the statute also specifically addresses images of teenagers. "Sexually exploitative material" includes visual material depicting a child in certain circumstances. § 18-6-403(2)(j) & (3)(b.5). A child is a person under the age of eighteen. § 18-6-403(2)(a). Most teenagers fall within the statute's definition of "child."[1] Nothing in the statute distinguishes a person possessing or controlling the visual material and the child depicted. Second, the juvenile makes a more nuanced argument that the legislature intended to carve out protection for the specific behavior of teen sexting. He relies on the legislative history and text of a different statute - the Internet child exploitation statute - which outlaws "importun[ing], invit[ing], or entic[ing]" certain conduct through, among other means, text messaging if "the actor knows or believes [the victim] to be under fifteen years of age and at least four years younger than the actor." § 18-3-405.4(1), C.R.S. 2016. The juvenile also notes that in 2009 the legislature amended both the Internet child exploitation statute and the sexual exploitation of a child statute.
¶ 51 These are two different criminal statutes, and we do not read the applicability of one to exclude the applicability of the other. They ban different behavior, have different punishments, and address different harms. Compare § 18-6-403(3)(b.5), with § 18-3-405.4. Behavior may violate one, both, or neither of these statutes. Generally, "[i]t is up to the prosecutor to determine which crimes to charge when a person's conduct arguably violates more than one statute." People v. Clanton, 2015 COA 8, ¶10. A different statute's legislative history does not affect our interpretation of the child exploitation statute. If anything, it is telling that the legislature did not amend the sexual exploitation of a child statute to mirror the age-focused language of the Internet child exploitation statute.
¶ 52 Although the issue of teen sexting may be a growing matter of public concern, whether it should be illegal and, if so, under what circumstances is a policy decision for the General Assembly. By affirming this conviction we do not mean to encourage prosecution of such offenses, and we urge prosecutors to continue to use discretion as to such cases. But, the sexual exploitation of a child act criminalizes teen sexting when it meets the enumerated elements of the statute. These elements are clear and unambiguous. Although the consequences for a convicted teenager may be substantial, as pointed out in the dissent, when the evidence satisfies the elements of the statute, we must apply the statute as written.
¶ 53 Accordingly, we conclude that sufficient evidence exists to support the sexual exploitation convictions. The evidence introduced at trial is sufficient to support the convictions, and the juvenile's statutory interpretation arguments are misplaced.